International Assistance: requests for the property until 2009

Conservation issues presented to the World Heritage Committee in 2009

The property of Melaka and George Town: Historic Cities of the Straits of Malacca was inscribed on the World Heritage List by the World Heritage Committee at its 32nd session in July 2008 (Quebec City, Canada). At the time of inscription, the World Heritage Committee asked the State Party to: submit a comprehensive conservation plan dealing with all the buildings and its schedule for implementation in both cities; develop measures for decreasing motor traffic; and improve the definition of key indicators for monitoring the architectural heritage components.

In November 2008, the World Heritage Centre received information through media reports concerning four hotel development projects in George Town, two of which are within the World Heritage property and two in its buffer zone. According to these reports, these projects involved the construction of high-rise buildings (from 12 to 28 floors) with potential negative impacts on the heritage value of the site. The World Heritage Centre addressed a letter to the State Party on 16 December 2008 requesting detailed information on these development proposals as well as the comments of the Malaysian authorities. On 3 February 2009, the World Heritage Centre received a report from the State Party containing information on two of the four projects (those which had already begun the construction) including an assessment of their heritage impact (HIAs) conducted by two experts commissioned by the State Party. The report contained also explanations on the legal process that had led to the approval of these projects in the context of the nomination of the property for World Heritage inscription. The contents of this report were also presented orally by the State Party to the World Heritage Centre during a meeting in Paris on 25 February 2009.

According to the report submitted by the State Party, these projects had been submitted and approved long before the elaboration of the proposal for the inscription of George Town on the World Heritage List. Because of this, these projects were not in conformity with the regulations, contained in the Guidelines for Conservation Areas and Historic Buildings (hereinafter the Guidelines) annexed to the Nomination File submitted in January 2007, prescribing for George Town a maximum height of 18 metres both within the World Heritage property and in the buffer zone. According to the State Party report, the local authorities were therefore legally bound to allow their construction, by virtue of the right acquired by the developer through the planning approval given to their applications. The State Party report also clarified that, following the submission of the Nomination File (but before inscription), these Guidelines had been modified by the introduction of a provision allowing for the construction of buildings higher than 18 metres, within the World Heritage property and its buffer zone, for land plots larger than 50,000 square feet and located next to buildings more than five storey high. This provision provided the new proposed developments with a legal basis for approval, given that these two conditions applied to all four cases. Despite this, the State Party had engaged the developers into a dialogue with a view to convincing them to modify the projects and reduce their heights, which they had in part agreed to. Conscious of the need for consultations with UNESCO and the World Heritage Committee, the State Party had also requested the developers of the two ongoing projects to halt work at the site, in spite of the significant costs involved.

In view of the urgency of the situation, and at the invitation of the State Party, the World Heritage Centre and ICOMOS carried out an advisory monitoring mission in order to clarify the process that had led to the four controversial projects, review these and assess their impact on the World Heritage property. This mission, which took place from 26 to 30 April 2009, reviewed the four proposed projects and held extensive consultations with the local and central authorities as well as with the developers. Its findings can be summarized as follows:

a) Process

With regard to the process that had led to the proposed developments, the mission noted that of the four projects in question, only one, in the buffer zone (i.e. extension of Eastern & Oriental Hotel by way of a 28 storey apartment block) had actually an established legal right to build at the time of the submission of the Nomination File, in January 2007. The approvals for all others – granted many years before - had in fact expired at that point, forcing the developers to submit a new proposal. In some cases the new applications were for a higher building. The City Council could have rejected any of the new applications without any legal consequences. Indeed, the technical staff of the City Council had recommended not approving these proposals, since they were in contradiction with the 18 metres height limit established in the Guidelines which were in use at the time. The developers, however, appealed to the State Planning Committee, the highest planning authority for the State of Penang, which overruled the Council and upheld the appeals, meaning that the City Council had no legal option but to issue the planning approvals. This took place after the submission of the Nomination File, but before the inscription of the property on the World Heritage List (July 2008). At the same time (August 2007), the State Planning Committee introduced the above-mentioned provision allowing for exceptions to the 18 metres height limit. No specific information was provided about these projects or the subsequent modification of the Guidelines in the Nomination File and supplementary documents prepared by the State Party. Unaware of this information, ICOMOS concluded, in its evaluation presented to the World Heritage Committee, that “the protective measures for the property (were) adequate”. The property was then inscribed on the World Heritage List.

The lack of information on the four development projects and the discrepancy between the set of regulations contained in the Nomination File and the approvals granted by the City authorities (and the new provisions allowing exceptions to the 18 metres height limit) were explained to the mission as a misunderstanding of the procedures of the World Heritage Convention.

At present, all developers have obtained the right to develop in accordance with their planning approvals and intend to do so. They are threatening to take the authorities to Court and demand very substantial financial compensations – which the City Council claims to be well beyond its reach - should they be forced to stop the work and abandon their projects. It is important to stress that the current Guidelines continue to allow for buildings higher than 18 metres provided that the two above-mentioned conditions are fulfilled, although the State Party has expressed its intention to remove this provision from the Guidelines. The State Party has also informed the mission about its decision to prepare Special Area Plans, which will provide guidance for planning and conservation at a lower scale and higher degree of detail. No specific timeframe was provided for their completion.

An additional issue identified by the mission is that in the current system there is no provision for the Federal Government (i.e. the State Party) to influence decisions taken by the State authorities either in George Town and Melaka.

b) The four projects and their impact

Following detailed visual analysis of the four projects it is evident that the nature and degree of impacts on the Outstanding Universal Value is very different in each case. Two of the four projects are already in construction phase. One of these, known as the Boustead project, is within the inscribed property while the other project, known as the Eastern & Oriental (E&O) project, is within the buffer zone.

Of the other two projects which have been approved, one, known as the AGB project, is within the inscribed property while the other, known as the Bintang project, is located within the buffer zone.

The Boustead project is for the construction of a 12 storey hotel immediately behind a row of two and three storey historic buildings facing the harbour front in the vicinity of the ferry piers. Restoration of the historic buildings and construction of the lower levels of the new building is well underway. While some changes have been made to the design of the new building in response to the recommendations of the commissioned heritage impact assessments (HIAs), the major concern with this development remains its height and bulk given its prominent location on a major road and its adverse impact on views from the harbour, in particular, as one approaches Georgetown on the ferry from the mainland. The 12 storey height exacerbates the impact of similarly-scaled towers on either side of it and, due to the limited setback, overscales the historic buildings in its foreground. These impacts are considered to harm the Outstanding Universal Value.

The E&O project is for a 15 storey building located next to the existing E&O hotel on the northern edge of the buffer zone facing the water. While other heritage listed buildings are within the vicinity, the potential impact of the proposal is limited due to the presence of existing buildings of similar height which effectively screen the tower from views within the inscribed property. The current proposal is substantially lower than the 28 storey project that was approved and further changes have been made following the preparation of the HIAs and successful negotiations between the Council and the developers. Importantly, the tower has been set back some 5 metres above the podium which is at a similar height to other buildings along the street and, notwithstanding that this is one of the major approach roads to the inscribed property, the overall impact of the development is not considered to cause significant harm to Outstanding Universal Value.

The AGB development is located in one of the most sensitive areas of the inscribed property, immediately alongside the clock tower of the former Railway building (and later Customs House) which is one of the most important landmarks within Georgetown. The site also faces the waterfront near the ferry piers and extends back to Beach Street which is a major road with an important historic scale and character. The approved development comprises 6 towers up to 13 storeys in height. A revised proposal, prepared following the World Heritage inscription and negotiations between the developer and Council, proposes 3 towers of similar height. Both the approved and revised proposals would have major impacts on important views of Georgetown from the water and from within the inscribed property. Both alternatives would visually dominate the important clock tower and both would also adversely impact on historic buildings fronting Beach Street and on the streetscape itself. If constructed, the project would significantly impact on the Outstanding Universal Value of the inscribed property.

The approved Bintang development is for a 23 storey hotel located in the north-west (outer) corner of the buffer zone adjacent to the harbour. The site is adjoined on either side by a low scaled historic residence and opposite lies a former school building in an advanced state of deterioration. Notwithstanding that the site has an historic context, it is located on the outer extremity of the buffer zone and within the vicinity of other tall buildings which were the basis of the successful planning appeal to the State Planning Committee (SPC) which resulted in planning approval. Visual analysis confirms that while the development would be visible from within certain parts of the inscribed property its impact on the Outstanding Universal Value would be relatively minor given the distances involved and the screening effects of existing buildings.

The City and State authorities have expressed to the mission their readiness to continue exploring alternative solutions that would address the above concerns, as well as to review and strengthen the current legal framework for the conservation and management of George Town.

The World Heritage Centre and ICOMOS take note of the spirit of genuine cooperation and of the positive attitude demonstrated by the State Party in trying to address the above-mentioned issues, which appear to result mainly from a certain lack of experience in the procedures of the World Heritage Convention (George Town and Melaka being the first cultural property inscribed by the State Party) rather than from lack of commitment.

They consider, however, that the two proposed developments within the inscribed area would, if constructed, harm the Outstanding Universal Value of the property. The two other developments in the buffer zone appear to be less problematic, in part due to their distance from the property and because they are surrounded by existing high-rise buildings that partially hide them from the inscribed area, and their adverse impacts could be ameliorated by proposals put forward. The current legal framework, moreover, does not appear to provide sufficient guarantees for the long-term conservation of the site.

The above ascertained and potential threats, in the opinion of the World Heritage Centre and ICOMOS, justifies the inscription of the property on the List of the World Heritage in Danger.

They further note that, while the protection of the heritage should not be perceived as a hindrance to development, it is equally important that development does not take place at the expense of the Outstanding Universal Value of the World Heritage property.

The commitment expressed by the State Party should now be translated urgently into concrete actions, including to reduce the height of the two projects within the inscribed property to 18 metres, to continue the efforts to mitigate the impact of the other two projects in the buffer zone, and to strengthen the legal and planning framework for the conservation and management of the property.

Decisions adopted by the Committee in 2009

Adopted

Draft Decision

33 COM 7B.78

Melaka and George Town, Historic Cities of the Straits of Malacca (Malaysia) (C 1223)

3. Considering that the proposed developments within the inscribed area of George Town, particularly the AGB project near the clock tower, are in contradiction with the protective measures described in the Nomination File and would, if constructed, have a significant adverse impact on the Outstanding Universal Value of the property,

4. Also considering the potential impacts of the two approved developments in the buffer zone;

5. Further considering that the introduction of a provision in the protective measures for George Town allowing for buildings higher than 18 metres in the World Heritage property and its buffer zone under certain circumstances, as well as the lack of legal mechanisms that would enable the Federal Government to exercise control on the property constitute a potential threat for the Outstanding Universal Value of the property,

6. Regrets that adequate information on these development proposals and the status of their approval, as well as on the modification of the protective regulations, was not provided by the State Party in the Nomination File and during the evaluation process;

7. Takes note with satisfaction of the official letter dated 15 June 2009 and oral statement by the State Party of Malaysia during its 33rd session, informing the Committee that:

a) The height of the two proposed development projects within the inscribed area, Bousted and AGB, will be reduced to 18 metres,

b) The impact of the two projects in the buffer zone, E&O and Bintang, has been reduced through the implementation of the modifications negotiated between the Council and the developers,

c) The provision allowing building higher than 18 metres within the inscribed property under certain circumstances in Georgetown has been abolished,

e) Special Area Plans for the inscribed property and its buffer zone that would provide planning controls and guidance at a more detailed level, will be prepared,

f) There will be no approval given for developments higher than 18 metres in the buffer zone until such time as the Special Area Plans are adopted,

g) A Technical Review Committee will be established, including a representative of the Federal Government (Department of National Heritage) to review all major development proposals and proposed planning controls and policies that could impact adversely on the Outstanding Universal Value,

h) Other measures to support the conservation of Georgetown have been taken, including the creation of a World Heritage Office, the strengthening of the Heritage Department within the City Council of Penang, and the creation of a World Heritage Day in Penang;

8. Commends the State Party for its efforts to negotiate with the developers with an aim to identify alternative solutions to the approved projects and reduce their adverse effect, including by commissioning heritage impact studies, as well as for the spirit of genuine concern and cooperation manifested in its attempts to clarify the issues with the World Heritage Centre and ICOMOS ;

9. Requests the State Party to continue its efforts to implement the recommendations made by the joint World Heritage Centre/ICOMOS mission, and notably to:

a) Develop the above-mentioned Special Area Plans for the inscribed property and its buffer zone, based on a careful analysis of important views, typologies and urban fabric the composition of the social fabric of George Town, and submit these to the World Heritage Centre and ICOMOS by 1 February 2011, for review,

b) Introduce new legal provisions in the protection and management system for the World Heritage property that would enable the central authorities at the level of the Federal Government to review and, if necessary veto proposals for major development projects, draft Special Area Plans and other relevant planning controls and policies both for George Town and Melaka;

10. Reiterates its request to the State Party to submit a comprehensive conservation plan dealing with all the buildings and its schedule for implementation in both cities, to develop measures for decreasing motor traffic, and to improve the definition of key indicators for monitoring the urban and architectural heritage components;

11. Also requests the State Party to submit to the World Heritage Centre, by 1 February 2011, a report on the progress made in the implementation of the recommendations contained in the points above, for examination by the World Heritage Committee at its 35th session in 2011.

Draft Decision: 33 COM 7B.78

3. Expresses great concern about the proposed developments within the inscribed area of George Town, particularly the AGB project near the clock tower, which are in contradiction with the protective measures described in the Nomination File and, if constructed, would have a significant potential adverse impact on the Outstanding Universal Value of the property

4. Also expresses concern at the potential impacts of the two approved developments in the buffer zone and encourages the Council to implement the modified schemes negotiated between the developers and the Council;

5. Expresses further concern about the introduction of a provision in the protective measures for George Town which allows for buildings higher than 18 metres in the World Heritage property and its buffer zone under certain circumstances, and by the lack of legal mechanisms that would enable the Federal Government to exercise control on the property;

6. Regrets that adequate information on these development proposals and the status of their approval, as well as on the modification in the protective measures, was not provided by the State Party in the Nomination File and during the evaluation process;

7. Takes note of the challenges faced by the State Party and of its commendable efforts to negotiate with the developers with an aim to identify alternative solutions to the approved projects or reduce their adverse effect, including by commissioning heritage impact studies, as well as of the spirit of genuine concern and cooperation manifested in its attempts to clarify the issues with the World Heritage Centre and ICOMOS ;

8. Considering however that the current proposed development within the inscribed area and the new provisions in the legal framework that allow constructions above 18 metres represent, respectively, significant ascertained and potential threats to the Outstanding Universal Value of the World Heritage property,

9. Recognising that the people of George Town have the legitimate right to pursue development opportunities, but considering that these should not come at the expense of the Outstanding Universal Value of the World Heritage property,

10. Decides to inscribe Melaka and George Town: Historic Cities of the Straits of Malacca (Malaysia) on the List of the World Heritage in Danger;

11. Urges the State Party to implement the following corrective measures for the removal of the property from the World Heritage List in Danger:

a) Reduce the height of the two development projects within the World Heritage property to 18 metres, in accordance with the protective measures established in the Guidelines for Conservation Areas and Historic Buildings (hereinafter the Guidelines) enclosed in the Nomination File which constituted the basis for the inscription of the property on the World Heritage List;

b) Continue efforts to reduce the impact of the two projects in the Buffer Zone by ensuring that the modifications negotiated between the Council and the developers are implemented;

c) Strengthen the protective measures for the site of George Town by:

(i) Immediately removing from the Guidelines the possibility to build higher than 18 metres within the World Heritage property under any circumstances;

(ii) Clarifying that the Guidelines, in particular the height controls, are binding regulations and not simply ‘guidelines’;

(iii) Developing Special Area Plans for the inscribed property and its buffer zone that would provide planning controls and guidance at a more detailed level, based on a careful analysis of important views, typologies and the composition of the social fabric of George Town, and submitting these to the World Heritage Centre and ICOMOS by 1 February 2011, for review;

(iv) Ensuring that until such time as the Special Area Plans have been finally adopted, no approval is given for developments within the buffer zone higher than 18 metres;

(v) Introducing new legal provisions in the protection and management system for the World Heritage property that would enable the central authorities at the level of the Federal Government to review and, if necessary veto proposals for major development projects, draft Special Area Plans and other relevant planning controls and policies both for George Town and Melaka;

(vi) Establishing a Technical Advisory Panel as a matter of priority with appropriate heritage expertise, including a representative of the Department of National Heritage, to review all major development proposals and proposed planning controls and policies that could impact adversely on the Outstanding Universal Value;

12. Requests the State Party, in consultation with the World Heritage Centre and the Advisory Bodies, to develop a proposal for the Desired state of conservation for the removal of the property from the List of World Heritage in Danger, for examination by the World Heritage Committee at its 34th session in 2010;

13. Also requests the State Party to submit to the World Heritage Centre, by 1 February 2010, a report on the progress made in the implementation of the recommendations contained in point 11 above, for examination by the World Heritage Committee at its 34th session in 2010.

* :
The threats indicated are listed in alphabetical order; their order does not constitute a classification according to the importance of their impact on the property.
Furthermore, they are presented irrespective of the type of threat faced by the property, i.e. with specific and proven imminent danger (“ascertained danger”) or with threats which could have deleterious effects on the property’s Outstanding Universal Value (“potential danger”).